Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. No. 10 CR 4124
Honorable Michele M. Pitman, Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court. Justices
Neville and Pucinski concurred in the judgment.
1 We vacate defendant Jerry Brown's conviction for
aggravated battery of a senior citizen under the one-act,
one-crime doctrine because we conclude that a single punch
was used as the basis for the aggravated battery conviction,
and as the element of force for the robbery conviction,
without evidence of other use of force, threat of force, or
2 This case comes before us again (People v. Brown,
2017 IL App (1st) 151311-U), after the Illinois Supreme Court
denied Brown's petition for leave to appeal and entered a
supervisory order directing us to vacate the order and
consider the effect of People v. Coats, 2018 IL
121926, on the issue of whether Brown's convictions for
robbery and aggravated battery of a senior citizen violate
the one-act, one-crime rule.
4 Brown and Stevie Smith were tried on charges of first
degree murder, aggravated battery of a senior citizen,
robbery, and aggravated battery. At trial, Deborah Halloran
testified that she managed the bar at the Veterans of Foreign
Wars (VFW) post in Midlothian, where William Burtner served
as the commander. About 9:30 a.m. on November 16, 2009,
Burtner and Halloran prepared money for deposit into four
accounts the VFW maintained at A.J. Smith Bank. Three bank
deposit bags held deposits for three separate accounts. An
additional amount was placed inside a cigar box for Burtner
to open a new account. Burtner left the VFW post with the
three deposit bags and the cigar box, and drove to the bank.
5 A teller at A.J. Smith Bank, Connie Weimar, testified that
about 10:15 a.m., she looked out the window and saw Burtner
walking towards the bank carrying bank deposit bags in his
hand. As Burtner approached the entrance, he passed behind a
wall and Weimar lost sight of him. Next, Weimar saw a man
wearing a hooded sweatshirt quickly walking past the front of
the bank towards Burtner. The hood covered the man's
head, and Weimar could not see his face. The man had nothing
in his hands. The man disappeared from Weimar's sight for
"a matter of seconds." When next she saw him, the
man held something in his hands, had turned around, and was
running to the adjacent Wendy's parking lot. There, he
entered the front passenger seat of a black car which drove
off, headed north. Weimar yelled "Call 911." Two
bank employees brought Burtner inside the bank and sat him
down in a chair. Later, Smith was determined to be the man
wearing the hooded sweatshirt.
6 Tamara Esposito heard her supervisor yell "Call 911, I
believe somebody was just robbed." Esposito went to the
front door and saw Burtner on the ground outside. Esposito
and a security guard helped Burtner, who asked Esposito to
retrieve a cigar box, which contained money and checks.
Esposito saw a black sports car speeding out of the
Wendy's parking lot. Esposito and the security guard
brought Burtner inside and sat him down in a chair. Burtner
was slightly bent over and holding his left side near his rib
cage. His breathing was labored, and he had difficulty
speaking. Burtner told Esposito that he was punched in his
7 Paramedics treated Burtner at the bank. Burtner was holding
his left side in his back rib area. Burtner complained of
pain in that area, and also experienced pain when taking deep
breaths. Paramedics transported Burtner to the hospital. The
State presented a stipulation that Burtner told a paramedic
that "he was hit from behind, and he fell."
8 Meanwhile, a high-speed police chase of the black car,
driven by Brown, had ensued. Brown and Smith crashed into
another automobile and came to a stop. They ran in opposite
directions. Minutes later, police found Brown hiding
underneath a car in a backyard and placed him in custody.
During a custodial search, police recovered cash from his
right pocket. The A.J. Smith bank deposit bags and money were
found inside the car. The Illinois State Police crime
laboratory tested blood samples taken from the
passenger's side of the black car. The results indicated
a DNA match with Smith. He was arrested on February 5, 2010.
9 Mary Burtner, William's wife, testified that her
husband was treated and released from the hospital on the day
of the robbery. When he returned home, he was in a lot of
pain, uncomfortable, and favoring his left side. The next
day, he felt worse. The following morning, November 18,
although still in a lot of pain, he went to his chemotherapy
appointment for treatment of lung cancer. At the hospital, he
couldn't walk due to his pain and needed a wheelchair.
When the couple arrived home about 3 p.m., Burtner was still
holding his left side and was unable to get out of the car.
Mary assisted him into their home, and into bed. Burtner fell
asleep and Mary checked on him. About 8:30 p.m., she found
her husband unresponsive and called 911.
10 When paramedics arrived, Burtner was unresponsive, not
breathing, and had no pulse or blood pressure. Paramedics
performed CPR, administered cardiac medications, and
transferred him to the hospital. There were no signs of life.
The State presented Burtner's death certificate
indicating that he was 65 years old.
11 Assistant chief medical examiner, Dr. Ponni Arunkumar,
performed an autopsy on Burtner. He determined that Burtner
suffered from lung cancer, two prior heart attacks, and heart
disease. She found that Burtner had three fractured ribs on
the left side of his chest wall. The rib fractures had
occurred less than three or four days earlier, and were
consistent with being punched. Dr. Arunkumar concluded that
Burtner's cause of death was hypertensive cardiovascular
disease. The fractured ribs, which were due to an assault,